The Laws of War in American History
By John Fabian Witt
Free Press, 512 pages
To hear President George W. Bush’s critics tell it, the steps the United States government took to fight terrorism after 9/11—from the holding of detainees at Guantánamo Bay to the Patriot Act—amounted to an unprecedented assault on civil liberties that was at odds with America’s long, noble tradition of upholding the rule of law even in wartime. Yale law professor John Fabian Witt is hardly a Bush partisan, but, based on his meticulous study of legal and military history, he reaches a very different conclusion—one that is more complicated and more interesting.
“From the Revolution forward,” he writes in Lincoln’s Code: The Laws of War in American History, “the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare that has come to be known among military historians as the ‘American way of war.’”
Rather than detecting a universal respect for the laws of war, he has found a never-ending clash between two competing ideals: humanitarianism and justice. Humanitarianism argues for limiting war’s severity, particularly on noncombatants. Justice argues for waging war as fiercely as possible to bring it to a swift end resulting in the total defeat of our enemies. An example of the former was the aid delivered by GIs in World War II and the humane treatment of German and Italian POWs in American prison camps. An example of the latter is the firebombing of German and Japanese cities followed by the atomic bombing of Hiroshima and Nagasaki—and the Nuremberg tribunal to try German war criminals.
These are not, admittedly, the examples that Witt focuses on in his well-written and fascinating, if overly discursive, account. He begins his narrative with the War of Independence and concludes with the Philippine War (1899–1902). The bulk of his focus is on the Civil War, which saw the promulgation of one of the most influential legal codes of warfare ever written—General Orders No. 100, released in April 1863 by the War Department. Covering everything from the treatment of guerrillas to freed slaves, it would serve as the basis for the Hague Convention, the Geneva Convention, and numerous other international attempts to codify laws or war.
“Old Hundred,” as it came to be known, was the work of law professor Francis Lieber, a Prussian-born liberal and youthful veteran of Waterloo. He wound up emigrating to the United States and teaching at South Carolina College before moving in 1857 to Columbia University. He was a fascinating character who had two sons fighting for the Union and one for the Confederacy. (The latter was killed and one of the former was badly wounded.) So influential was his role that General Orders No. 100 is universally known as “the Lieber Code.” (Witt prefers to call it “Lincoln’s Code” for what one suspects are book-marketing reasons.)
To understand why the Lieber Code was (and is) so important, Witt surveys the state of the laws of war before its promulgation. Scholars such as the Swiss-born Emmerich de Vattel, who lived from 1714 to 1767, produced “a dizzying array of rules” designed to govern Enlightenment-era warfare between small royal armies—conflicts in which most ordinary people were spectators, not participants. In Vattel’s view, considerations of “humanity” compelled “the gentlest methods” possible to accomplish war aims.
When an army violated the laws of war, the remedy prescribed by Vattel was retaliation—for example, seizing enemy property. General Winfield Scott broke dramatically with that precedent in the Mexican War of 1846. When his forces were beset by Mexican guerrillas, he did not retaliate. Rather, he set up the first “military commissions” to try the attackers. This was, Witt writes, a “transformative moment,” for it was the first time that “individual members of the enemy’s armies” were to be punished “for violations of the laws of war.” Scott had “given life to the idea of the war crime.”
When the Civil War broke out, countless questions of legality remained unresolved, the principal one being: Were Confederate fighters entitled to the protections of the laws of war, or were they outlaws who could be summarily punished by the courts? Lincoln vacillated in the war’s early days, sometimes treating the Confederacy “as an independent country in one breath and as a criminal conspiracy in the next.” Gradually, the Union settled into an implicit recognition of the Confederacy as a lawful combatant without ever recognizing its independence. There was no other choice, really, unless the Union was willing to risk retaliatory Southern mistreatment of Union prisoners—something that happened anyway at the notorious Andersonville prison (whose commander was later hanged for war crimes).
Lieber was crucial in justifying this bit of legal gymnastics, arguing in the New York Times, for example, that “prisoner exchanges with the Confederacy did not entail any recognition of the South as an independent country.” His growing prominence as a pro-Union legal scholar made it natural for his friend, Lincoln’s general-in-chief, Henry Halleck, to turn to him to elucidate tricky issues of law relating to the ongoing conflict—a role that eventually led to his drafting at the end of 1862 of what became General Orders No. 100.
Lieber brought to the task a firm conviction that the Union war aims were morally righteous and that Union arms should not be overly restrained in their pursuit. He called Vattel “Father Namby Pamby” and advocated a more muscular approach that was better suited to “the age of democratic nations and mass armies.” Lieber’s key contribution, Witt writes, was to “measure an act’s permissibility by reference to its aims.” In other words, fighters for freedom, as the Union armies indisputably were after the Emancipation Proclamation, were to be allowed great leeway to inflict suffering on the enemy.
Lieber condemned the use of torture under any circumstances, along with the use of poisons, the breaking of truces, and the carrying out of assassinations (designating an individual “an outlaw, who may be slain without trial”). Almost any other destruction was permissible in a legitimate war effort, including the starving of civilians and the bombardment of cities without notice. Also allowed were new and destructive weapons such as submarine torpedoes and land mines. All were justified, Lieber wrote, because “the more earnestly and keenly wars are carried on, the better for humanity, for peace, and civilization.”
This was, in essence, the legal doctrine that sanctioned Sherman’s attack on Atlanta in the summer of 1864 and then his March to the Sea, during which his soldiers devastated the Southern countryside. A version of the same doctrine would later justify the strategic bombing of Germany and Japan, which killed hundreds of thousands of noncombatants.
Lieber also made an important contribution, in an 1862 essay entitled “Guerrilla Parties Considered with Reference to the Laws and Usages of War,” by showing Union commanders how to deal with Southern bushwhackers who preyed on Union armies and civilians alike. Union generals were not sure whether to treat these irregulars as criminals or lawful soldiers. Their status was particularly uncertain after the Confederate government began issuing commissions to “partisan rangers.”
Lieber laid out many of the conditions that are still used to distinguish soldiers from terrorists today: A soldier was “paid and provisioned” by an army. His movements “were dictated by a command structure that enforced discipline.” He wore a uniform or at least a badge of his status, and he followed the laws of war himself—which included taking prisoners when the enemy surrendered. If a Confederate fighter passed these tests, he would be treated as a lawful prisoner and detained under humane conditions for the duration of the conflict. If not, he was liable to face trial and execution. Nearly a century later, Lieber’s distinction between lawful and unlawful combatants would be codified in the Third Geneva Convention of 1949.
Witt ends his narrative with a short, qualified defense of the laws of war. Although they have never been unreservedly followed, he believes they “serve as a useful guide to the nation’s long-term interests.” Even conservatives skeptical of international law’s abrogation of sovereignty would be compelled to agree. No one, after all, seriously advocates a lawless world with no limits on the use of military force. The question is where we should draw the lines. The value of Witt’s account is that it shows how the answer to that question has changed over the centuries—and how, whether in the Civil War or the War on Terror, our political leaders have struggled to reconcile the sometimes competing demands of humanitarianism and justice.
It should be no surprise that George W. Bush did not always succeed at this tricky task. Neither did Abraham Lincoln.